Subhash vs State Of Nct Delhi
2009 Latest Caselaw 357 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      CRL.A. 76/2005


%                        Date of Order : February 03, 2009


      SUBHASH                               ..... Appellant
                   Through:   Mr.V.K.Raina, Advocate.


                              versus


      STATE OF NCT OF DELHI             ..... Respondent
                Through: Ms.Richa Kapoor, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. Since limited submissions have been urged at the

hearing of the appeal today, we propose to note the charge laid

against the appellant and co-accused Manoj and the evidence

marshalled against the appellant. We note that the co-accused

Manoj has been acquitted. The State has not filed any appeal

challenging the impugned order in so far Manoj has been

acquitted.

2. Deepak son of Subhash aged 3 years was murdered

in the early hours on 3rd July 2002 at the terrace of the house of

his grandmother Maya Devi PW-7.

3. Maya Devi was blessed with two sons named

Subhash and Manoj. She was blessed with a daughter, Babli.

Babli was married to the appellant Subhash. (The reader of the

present decision may be cautioned that there would be a

reference to two persons named Subhash. One Subhash is the

son of Maya Devi and is the father of the deceased and the

other Subhash is her son-in-law i.e. the appellant).

4. Subhash son of Maya Devi was blessed with a son

Deepak and three daughters. The second son of Maya Devi

namely Manoj, the co-accused, was issue-less.

5. As per the prosecution, Manoj son of Maya Devi, and

Subhash the son-in-law of Maya Devi, thought that by removing

Deepak they could reach out to the property of Maya Devi and

for said reason entered into a conspiracy to murder Deepak. In

furtherance of the conspiracy both committed the offence when

Deepak was sleeping at the terrace of the house of his

grandmother Maya Devi. Unfortunately for the two, Baby Kiran

and Baby Savita, the two minor sisters of deceased Deepak

happened to be also sleeping on the terrace; they arose from

their slumber and raised a hue and cry. According to the

charge-sheet, Manoj and the appellant had stuffed the body of

Deepak in a gunny bag and were in the process of removing the

same to some other place, when, as a result of Kiran and Savita

raisin a hue and cry, other family members as also neighbours

reached the spot.

6. The appellant and co-accused Manoj were charged

for having entered into a conspiracy to murder Deepak i.e. for

the offence punishable under Section 120-B IPC. They were also

charged with the offence of having murdered Deepak i.e. the

offence punishable under Section 302 IPC.

7. During trial Kiran, the sister of the deceased aged 6

years when she deposed (being 5 years old when the incident

took place), supported the case of the prosecution but limited to

the role of the appellant. She deposed that on the day of the

incident she, her sister Savita, her brother Deepak and the

appellant were sleeping on the roof of the house. The appellant

picked up a brick and started pounding her brother on the chest

as a result whereof he died.

8. Savita the other sister of the deceased, also aged 6

years when she deposed, was examined as PW-3. She

corroborated PW-1 with respect to the two sisters, their brother

and the appellant sleeping on the terrace of the house of her

grandmother and the appellant inflicting injuries on her brother.

9. Since a submission has been made, we note that

Savita has stated that the appellant had picked up a stone to

pound her brother on the chest but PW-1 has deposed to a brick

being used as the weapon of offence.

10. The grandmother of the deceased, namely Maya Devi

PW-7, corroborated the testimony of PW-1 and PW-3 on the fact

that the two sisters, along with their brother and the appellant

were sleeping on the terrace of the house. She further deposed

of having heard the two young girls shrieking 'Mummy mar dia -

Mummy mar dia', at which she along with Manoj, who were

sleeping on the ground floor, ran up-stairs and on reaching the

terrace saw that appellant Subhash was hitting Deepak and

attempted to run away when she saw him, but was apprehended

by the public who had gathered on hearing their cries.

11. Witnesses of the prosecution who were to depose in

support of having heard co-accused Manoj speak with the

appellant to liquidate Deepak turned hostile. The result was

that the prosecution had no material to prove the charge of

conspiracy or involvement of Manoj; resulting in Manoj being

acquitted.

12. The learned Trial Judge has held that the child

witnesses were cross-examined and with-stood the test of cross-

examination. Their grandmother Maya Devi was also cross-

examined and even she has with-stood the test of cross-

examination. The result is, the learned Trial Judge holding that

PW-1, PW-3 and PW-7 are the eye-witnesses to the incident and

that there is no reason they should not be believed.

13. Pertaining to how Deepak died we may record that

the body of the young infant child was sent to Sanjay Gandhi

Memorial Hospital, Mangolpuri, Delhi where post-mortem was

conducted by Dr.Komal Singh PW-13. The post-mortem report

Ex.PW-13/A records multiple pressure linear abrasions spreading

over the chest on the back over the right lung and the forearms.

The laceration on the frontal area of the skull was noted.

Internal examination revealed that the eight to the tenth ribs of

the left side were fractured. Third to the sixth ribs on the right

side were fractured. The left lung was lacerated. The thoracic

cavity contained 300 ml of clotted blood.

14. It is apparent that the young child was brutally

clubbed to death.

15. Learned counsel for the appellant has urged that

there are material contradictions and variations in the testimony

of PW-1 and PW-3. Counsel urges that PW-1 has deposed that

the accused hit her brother with bricks whereas PW-3 has

deposed of her brother being hit with a stone.

16. The submission merits no further consideration; save

and except to note that PW-1 and PW-3 were 5 years of age

when they saw the incident. The young child would not know

the generic difference between a brick and a stone. A young

child would possibly use the two words interchangeably.

17. The second submission made by learned counsel for

the appellant is that it is unnatural for the deceased and his two

sisters to be sleeping on the roof with a stranger. Counsel urges

that the natural conduct of the grandchildren would be to sleep

with their mother.

18. The argument misses the point that the appellant

was not a stranger in the family. He was the husband of the

maternal aunt of the children. How on earth would Maya Devi

and the parents of the deceased ever conceive that the son-in-

law of the family would do such a heinous act.

19. Besides, children do enjoy the company of relatives

and it is not unheard of children insisting to sleep in the room

with their uncles and aunts.

20. The argument has hardly impressed us.

21. Clutching on to straws, learned counsel for the

appellant urges that PW-1 has stated that the family members

reached when the appellant had put her brother in a gunny bag

and was in the process of removing him with Manoj. Counsel

urges that the other witnesses have not so deposed.

22. As noted above, Kiran PW-1, was 5 years when she

saw the incident.

23. We note that photographs of the deceased child were

taken at the spot by HC Subhash Chander, a photographer PW-

11, which have been proved as Ex.PW-11/A-10 to A-18,

negatives whereof are Ex.PW-11/A-1 to A-9. The same do not

show the presence of any gunny bag much less the child being

put in a gunny bag.

24. It appears that the young girl had blogged the

subsequent events where she must have seen the dead body of

her brother being wrapped in a sheet and removed.

25. The said variation in the testimony of PW-1 is an

explainable variation keeping in view her tender age when she

witnessed the crime i.e. being 5 years of age.

26. Unfortunately for the appellant the tell-tale evidence

which has come on record coupled with the evidence that he

was apprehended at the spot is of such a high quality that even

his counsel has hardly any worthwhile submissions to make.

27. We note that the charge of conspiracy has failed.

The appellant has been convicted for the offence punishable

under Section 302 IPC.

28. Noting that the extreme penalty of death has not

been inflicted upon the appellant, we dismiss the appeal.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 03, 2009 Dharmender